http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

PETITIONER:

RANGNATH

Vs.

RESPONDENT:

DAULATRAO AND ORS.

DATE OF JUDGMENT20/12/1974

BENCH:

UNTWALIA, N.L.

BENCH:

UNTWALIA, N.L.

MATHEW, KUTTYIL KURIEN

BHAGWATI, P.N.

CITATION:

1975 AIR 2146 1975 SCR (3) 99

1975 SCC (1) 686

CITATOR INFO :

D 1977 SC 567 (23)

F 1977 SC 757 (36)

R 1977 SC1673 (9)

R 1980 SC1255 (11)

RF 1980 SC2056 (65)

RF 1985 SC 781 (16)

R 1986 SC2105 (17)

R 1990 SC1607 (20)

ACT:

Natural justice-Speaking order-State Government while

disposing a statutory appeal whether bound to give personal

hearing and to pass a speaking order.

Hyderabad Abolition of Inams and Cash grants Act, 1954.

Whether tenancy comes to an end on service of notice of

termination-Practice-Whether a ground contrary to one taken

all throughout can be allowed to be raised at the stage of

arguments-Res judicata.

HEADNOTE:

The appellant was the Inamdar and respondent no. 1 was the

tenant of the suit land when the Hyderabad Abolition of

Inams and Cash Grants Act, 1954 was made applicable to the

suit 'land. By virtue of the said Abolition Act, the

appellants Inam was abolished and it vested in the State.

Before the Inam was abolished. the appellant terminated the

tenancy of first respondent by a notice and filed a

proceeding for eviction of the tenant Under the Tenancy Act.

The said application was rejected by the Naib Tahsildar

before, the Inam was abolished. However, after the Inam was

abolisbed on an appeal the Deputy Collector allowed the

appellant to resume the suit land. The Revenue Tribunal

allowed the revision of respondent No. 1 on the ground that

after the abolition and vesting of the appellant's Inam, the

first respondent as a tenant in possession acquired all the

rights of an occupant tinder the Act. During the

proceedings under the Inam Abolition Act, the appellant

contended that the respondent no. 1 did not become the

occupant of the land. The Tahsildar decided that

respondent no. 1 was a tenant in possession and,

therefore, acquired the rights of an occupant. The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

appellant filed an appeal before the State Government under

the Abolition Act against the said decision of the

Tahsildar. The State Government dismissed the said appeal

without passing a speaking order and without giving a

personal hearing to the appellant. The appellant filed a

writ petition against the said order of the State Government

which was dismissed- by the High Court. The appellant filed

a writ petition against the said judgment. of the Bombay

High Court. It was contended before this Court, (i) that

the State Government was not justified 'in rejecting the

appellant's statutory appeal without giving him a hearing

and without passing any reasoned order. (ii) that the inam

in question was a service Inam and hence in view of the

provision of Law contained in section 102A(c) of the Tenancy

Act the said Act was not applicable to the land in question;

respondent no.1 could therefore never be a tenant of the

land. (iii) that the proceedings initiated by the appellant

for resumption of land under the Tenancy Act were all ultra

vires and without jurisdiction, there being no relationship

of landlord and tenant between the parties under the Tenancy

Act. Jurisdiction could not be conferred by an erroneous

stand of the appellant that the first respondent was his

tenant. (iv) In any view of the matter the tenancy was

terminated by service of a notice under s. 44 and the filing

of the application under s. 32(2) of the Tenancy Act,

against respondent no. 1. He was. therefore, not a tenant in

possession of the land on 1-7-1960 the date of vesting of

the Inam. (v) The High Court has committed an error in

holding that its judgment in Special Petition No. 1881 of

1962 operated as res-Judicata on the question of respondent

no. 1 acquiring the eight of an occupant under section 6(1)

of tile Abolition of Inams Act.

HELD : (1) It was not necessary for the State Government to

give a personal hearing to the appellant or his

representative. When in order is

100

liable to be challenged under Arts. 226 and 227 of the

Constitution, courts insist that an appeal ought to be

disposed of by a speaking order giving reasons in its

support. It may not be possible in all cases to say that a

non-speaking order is bad or invalid. On the facts of the

case, the High Court rightly did not set aside the order of

the State Government and remit back the appellant's appeal

on that ground. No determination or adjudication of facts

was involved. [103A-D]

(2) Mere service of the notice terminating the tenancy and

filing an application for possession does not bring an end

to the tenancy. Until and unless the possession was

directed to be delivered to the land holder' the tenant

continued in possession as a tenant. The decision of the

full bench of Bombay High Court-reported in 67 Bombay Law

Reporter 521 doubted. [104-F-G; 105-A-B]

(3) The appellant all along contended that the Inam was not

a service Inam. The said contention is contrary to the case

of the appellant throughout. [103-F]

(4) The appellant cannot contend that respondent no. 1 is

not a tenant. The appellant all along treated respondent

no. 1 as a tenant. The appellant did not even assert in

the Statement of case or the additional grounds that

respondent no. 1 is not a tenant. Respondent no. 1 was in

cultivating possession and was paying rent to the appellant.

It could not be in any capacity other than a tenant. [103H-

104B]

(5) The High Court rightly held that issue as to whether

respondent no. 1 acquired the right as an occupant or not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

was barred on the principles of res judicata in view of the

decision of the High Court in the earlier petition, [105-E]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 30 of 1968.

Appeal by Special Leave from the Judgment & Order dated the

14th October, 1966 of the Bombay High Court in W.P. (Spl.

C. Appln. of 1019 of 1965).

B. N. Lokur and A. G. Ratnaparkhi, for the Appellant.

S. T. Desai and R. B. Datar, for Respondent No. 1.

M. N. Shroff, for Respondent No. 2.

The Judgment of the Court was delivered by

UNTWALIA, J.-In this appeal filed by special leave of this

Court it would be noticed that the appellant has endeavoured

on one ground or the other to get the 15 acres and 14

Gunthas of land in Osmanabad which at one time formed part

of the erstwhile State of Hyderabad and eventually came to

be a part of the State of Maharashtra. The disputed land is

comprised in Survey No. 206/B. There is no dispute that the

appellant was the Inamdar of this land. The Hyderabad

Abolition of Inams and Cash Grants Act, 1954 being Hyderabad

Act No. VIII of 1955 (hereinafter called the Abolition of

Inams Act,) came into force on its publication in the

gazette on the 20th July, 1955. The Abolition of Inams Act

was amended by the Hyderabad Abolition of Inams (Amendment)

Act, 1956 and was further amended by Bombay Act 64 of 1959

which came into force on 1st July, 1960. It is no longer in

controversy that the Abolition of Inams Act became

applicable to the appellant's Inam by virtue of the amended

provisions on 1-7-1960 as a result of which under Section 3

appellants Inam was abolished and vested in the State. Upon

its vesting, certain consequences followed which will be

adverted to hereinafter in this judgment.

101

The first round of litigation started by the appellant

against respondent no. 1 treating him as his tenant under

the Hyderabad Tenancy and Agricultural Land Act, 1950,

Hyderabad Act No. XXI of 1950 (hereinafter called the

Tenancy Act) was started by the appellant by serving a

notice on the first respondent under section 44 of the said

Tenancy Act. The appellant claimed in that proceeding that

he bonafide required the land for cultivating it personally

and hence after service of notice purporting to terminate

the tenancy by the 31st day of December, 1958 him proceeded

to file an application on 18-3-1959 for possession of the

land under section 32(2) of the Tenancy Act. The Naib

Tehsildar, Land Reforms, Osmanabad rejected the resumption

application of the appellant by his order dated 22-10-1959

holding against him on merits that he has made out no case

for termination of the tenancy. The appellant went up in

appeal which was allowed by the Deputy Collector Land

Reforms Osmanabad by his order dated 25-5-1962. The Deputy

Collector allowed the appellant to resume the disputed lands

in Survey No. 206 holding in his favour on merits.

Respondent no. 1 went up in revision. The Revenue Tribunal

allowed the revision of respondent no. 1 by its order made

on 15-10-1962. It took the view accepting a new stand taken

on behalf of the tenant respondent,no. 1 that after the

abolition and vesting of the appellant's Inam the said

respondent who was in possession of the land covered by the

Inam as a tenant holding from the Jnamdar had acquired all

the rights of an occupant in respect of such land under

section 6 (1 )(a) of the Abolition of Inams Act. The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

appellant moved the High Court of Bombay under Article 227

of the Constitution of India in Special Civil Application No.

1881 of 1962. Agreeing with the view of the Revenue

Tribunal the Special Civil Application was dismissed by the

High Court on 26-9-1963.

The second round of fight culminating in the present appeal

started between the parties when proceedings under section

2A which was introduced in the Abolition of Inams Act by

section 6 of Bombay Act, 64 of 1959 were initiated before

the Officer authorised by the State Government to decide

certain questions relating to Inams. The Tehsildar gave a

notice to respondent no. 1 for payment of price in lieu of

his having acquired the right of an occupant in the land in

accordance with section 6 of the Abolition of Inams Act.

The appellant filed his objection and asserted that

respondent no. 1 had not become the occupant of the land

under the, provisions of law aforesaid. Various questions

were raised by him. The Deputy Collector decided the matter

in the first instance by his order dated 30-11-1962. He

held that the land was granted to the appellant for his

service as Mahajan; it could, therefore, be deemed to be a

Watan land. He further held that the provisions of section

6 of Abolition of Inams Act were applicable and the date of

vesting of the Inam was 1st July, 1960 and not 20th July,

1955. Since he was not the Officer to decide the question

of possession under section 6(1) of the Abolition of inams

Act, he remained content by saying in his order dated 30-11-

1962 "The land in question being the Watan land, shall be

resumed and vested in Government with effect from 1st July

1960 and the person

102

in possession of the land at the time of vesting shall be

entitled to occupancy right under section 6(1) of the Act in

respect of the said land." He finally directed that a copy

of this order be sent to the Tehsildar Osmanabad for further

necessary action. The Tehsildar by his order dated 15-7-

1963 decided the matter in favour of the first respondent'

and held him to be a tenant in possession of the land on the

date of vesting of the Inam and hence a person acquiring the

rights of an occupant under section 6(1). The objection of

the appellant was rejected by the Tehsildar.

The appellant filed an appeal before the State Government

under section 2A(2) of the Abolition of Inams Act from the

decision of the Tehsildar. The rejection of the appellant's

appeal by the State Government was communicated to him by a

letter dated 27th November, 1964 of the Under Secretary to

the Government of Maharashtra, Revenue and Forest

Department. The appellant challenged the order of the State

Government in Special Civil Application No. 1019 of 1966

under Articles 226 and 227 of the Constitution of India in

the Bombay High Court. A Bench of the High Court dismissed

his Writ Application by its judgment and order dated 1.4-10-

1966. The appellant presented this appeal by special leave

of this Court.

Mr. B. N. Lokur, learned counsel for the appellant made

following submissions in support of the appeal

1. That the State Government was not

justified in rejecting the appellant's

statutory appeal without giving him a

hearing and without passing any reasoned

order.

2. That the Inam in question was a service

Inam and hence in view of the provision of law

contained in section 102A(c) of the Tenancy

Act the said Act was not applicable to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

land in question; respondent no. 1 could

therefore never be a tenant of the land.

3. That the proceedings initiated by the

appellant for resumption of land under the

Tenancy Act were all ultra vires and without

jurisdiction, there being no relationship of

landlord and tenant between the parties under

the Tenancy res-judicata on the question of

respondent no. 1 acquiring the of an occupant

under section 6(1) of the Abolition of Inam

Act.

4. In any view of the matter the tenancy

was terminated by service of a notice under

section 44 and the filing of the application

under section 32(2) of the Tenancy Act,,

against respondent no. 1. He, was, therefore,

not a tenant in possession of the land on 1-7-

1960 the date of vesting of the Inam.

5. The High Court has committed an error in

holding that its judgment in Special Petition

No. 1881 of 1962 operated the res-judicata on

the question of respondent no. 1 acquiring the

103

In our judgment none of the points urged on behalf of the

appellant is fit to succeed.

It was not necessary for the State Government to give a

personal hearing to the appellant or his authorised

representative before disposal of his appeal. As has been

repeatedly pointed out by this Court the State Government

ought to have disposed of the statutory appeal of the

appellant filed under section 2A(2) of the Abolition of

Inams Act by a speaking order. It may not be possible in

all cases to say that a nonspeaking order is bad or invalid

on that account alone but when an order is liable to be

challenged under Articles 226 or 227 of the Constitution of

India, Courts do insist that an appeal of the kind filed by

the appellant should be and ought to have been disposed of

by a speaking order giving some reasons in its support. But

on the facts and in the circumstances of this case the High

Court did not feet persuaded, and in our opinion rightly, to

set aside the order of the State Government and remit back

the appellants appeal to them merely on that account. No

determination or adjudication of facts was involved The

decision of the case rested on the points of law. The High

Court did examine the question as to whether respondent no.

1 could not be a tenant of the appellant because of the

reason that the Inam had been held to be a Watan Inam and

consequently according to the appellant it was a service

Inam. In the present proceeding the High Court pointed out

that respondent no. 1 was admittedly the appellant's

tenant. Mere service of notice under section 44 of the

Tenancy Act had not terminated the tenancy. The proceeding

for resumption of the land under the Tenancy Act finally

terminated against the appellant on the ground that

respondent no. 1 could no longer be evicted as he had

acquired the right of an occupant under the Abolition of 1

On the finding recorded by the Deputy Collector in his order

dated 30-11-1962 that the appellant held the Inam as a Watan

for the purpose of this case we shall assume in his favour

that it was a service Inam and hence the provisions of the

Tenancy Act were not applicable. But such a stand is wholly

contrary to the appellant's case in the previous proceedings

for resumption of land. Every where the appellant asserted

that respondent no. 1 was his tenant, so much so that in his

Special Civil Application No. 1881 of 1962 a copy of which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

was given to us by Mr' S. T. Desai, learned counsel for

respondent no. 1, he had stated in paragraph 7 "That the

learned Member of the Tribunal has failed to apply his mind

to the provisions of Sec. 102(c) which was in force prior to

the substitution of new Section 102-A(c) of the Hyderabad

Tenancy and Agricultural Lands Act. It does not apply to

the case in question as the suit land is an Inam land not a

service Inam, so the Tenancy Act is applicable to the

present case." It is not open to the appellant to change

his stand and then assert that the previous proceedings started

by him for resumption of the land was ultra vires and without

jurisdiction as the Tenancy Act was not applicable to the

land. The appellant than tried to urge that respondent no.

1 could not be and was not a tenant of the land. But this

contention is also not open to the appellant. No where it

has been.

104

asserted by the appellant not even in the statement of the

case and the additional grounds filed in this Court except

in the argument put forward by his learned counsel that the

Inamdar of the kind the appellant Was, had no right to

induct any tenant on the Inam land. The fact remains that

respondent no. 1 was in cultivating possession of the land

in question paying rent to the appellant since long before

the vesting of the Inam. It could not but be in his

capacity as a tenant of the appellant. It is not open to

the appellant to assert that the order made by the Revenue

Tribunal or as a matter of that in his earlier Special Civil

Application by the Bombay High Court was in a proceeding in

which there was inherent lack of jurisdiction in the first

authority and consequently the order was also a nullity.

There is no substance in the 4th submission of Mr. Lokur.

Section 44(1) of the Tenancy Act reads as follows :

44(1) "Notwithstanding anything contained in

section 6 or 19 but subject to the provisions

of sub-sections (2) to (7), landholder (not

being a landholder within the meaning of

Chapter IV-C) may) after giving notice to the

tenant and making an application for

possession as provided in subsection (2),

terminate the tenancy of any land, if the

landholder bonafide requires the land for

cultivating it personally. "

Section 32 prescribes the procedure of taking possession of

the land and sub-section (2) says "Save as otherwise

provided in subsection (3A), no landholder shall obtain

possession of any land or dwelling house held by a tenant

except under an order of the Tehsildar, for which he shall

apply in the prescribed form within a period of two years

from the date of the commencement of the Hyderabad Tenancy

and Agricultural Lands (Amendment) Act, 1957, or the date on

which the right to such possession accrued to him whichever

is later." Reading the wordings of sections 44(1) and 32(2)

of the Tenancy Act it was not possible to accept the

contention put forward on behalf of the appellant that by

mere service of notice and the filing of application for

possession the tenancy had some to an end. Until and unless

possession was directed to be delivered to the landholder by

the competent authority, the tenant continued in possession

and continued to be so as a tenant. A full Bench of the

Bombay High Court in Dattatraya Sadashiv Dhond v. Ganpati

Raghu Gaoli(1) expressed the view at page 529 "The manner in

which a tenancy is to be terminated is, however, laid down

in section 44. Under this section the tenancy terminates

when after giving the requisite notice the landholder makes

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7

an application for possession to the Tehsildar. Thereafter

the tenant's possession is not unlawful, but it is not held

by him as a tenant. He has an estate in possession, which

he will lose if the Tehsildar makes an order in favour of

the landholder. If, however, the Tehsildar rejects the

application of the landholder, the termination of tenancy by

the-landholder will become ineffective. The tenancy will

revive and the tenant will continue in

(1) 67 Bombay Law Reporter, 521.

105

possession as if his tenancy had not been terminated."

Although the view so expressed by the Bombay High Court may

not be quite, accurate and the better view to take may be to

say that the process of termination of tenancy started by

the service of notice and the filing of the application for

possession by the landholder is not complete until an order

for possession is made by the competent authority and,

therefore, there is no termination of tenancy until an order

for possession follows in the process, the matter become

beyond the pale of controversy in view of rule 28(5) of the

Hyderabad Tenancy and Agricultural Lands Rules made in

accordance with sub-section (10) of section 44 of the Act.

Sub-section (10) empowers the State Government to provide by

rules the time when the termination of tenancy will take

effect and rule 28(5) says that on the granting of the

application for possession the tenancy shall stand

terminated from the commencement of the year following the

year in which the application is granted. It is, therefore,

clear that the tenancy did not come to an end by the mere

service of notice and the filing of the application by the

appellant against respondent no. 1 under the Tenancy Act.

He was a tenant when the Inam of the appellant vested in the

State on the 1st of July, 1960. Indisputably, he was in

possession of the land on that date. Consequently he

acquired the rights of an occupant under section 6(1) of the

Abolition of Inams Act. There was no error committed by the

High Court in deciding this question against the appellant.

The High Court was also right in holding that the issue as

to the acquiring by respondent no. 1 of the right of an

occupant was barred on the principles of res judicata in

view of the previous decision in the earlier Special Civil

Application. Neither the Revenue Tribunal nor the High

Court in the earlier proceeding went into the merits of the

appellant's claim for resumption of the land. It defeated

him on the ground that since respondent no. 1 had acquired

the right of an occupant on the abolition and the vesting of

the Inam the application under section 32(2) of the Tenancy

Act had got to fail. The issue directly and substantially

fell for determination in the earlier case. It was decided

against the appellant and he cannot re-agitate the very same

question in this proceeding.

For the reasons stated above the appeal fails and is

dismissed with costs to Respondent No. 1 above.

P.H.P. Appeal dismissed.

106